A restaurant tenant moved for an order granting leave to interpose an amended answer, adding a defense of “legal impossibility.” The petitioner landlord argued that it would be prejudiced if the tenant was permitted to amend the answer “at this late hour.”

The court explained that pursuant to CPLR §305, “leave shall be freely given upon such terms as may be just including the granting of costs and continuances.” Additionally, “leave to amend a pleading shall be freely given, absent prejudice or surprise. CPLR §305(c).”